Excerpt:.....of this contract. acting under the statute in question, the government which had taken over that liability to pay the village servants and relieved the raja from that liability increased the peshkash payable by the raja with the result that, but for a further provision in the statute in a case like this, the raja would have to pay the extra peshkash, whereas the farmers would receive and keep what was still being received from, the ryots to provide for the payment of the village officers, that is, the 9 per cent. it seems to me that once you have got it that the zamindar here, who is clearly the proprietor within the meaning of this statute, sues for payment t of rent--and, in fact, the first branch of mr. it is clear that at the date of the cowles the zamindar had no interest in..........1894 two cowles were executed by the then raja in favour of those farmers. before the cowles the raja or zamindar received 48 per cent of the total produce, the ryots or actual cultivators of the land keeping the other 52 per cent. of that 48 per cent one-fourth or 12 per cent of total was received by the raja for certain purposes---3 per cent for charities and 9 per cent for the payment of village officers whom the raja was liable to pay. by the cowles, the raja let for a term of years all his interest in the villages to the farmers. the villages are defined by boundaries and most of the land in them was in the occupation of ryots, but there were offices, buildings, tanks, trees and possibly waste land and jungle, which were in the occupation of the raja himself. therefore, what was.....

Judgment:

Walter Salis Schwabe, Kt., K.C., C.J.

1. This is a claim by the Raja of Ramnad against the farmers or tenants of villages in that zamindari to recover from them the money value of certain annual payments received by them from the ryots of those villages. In 1894 two cowles were executed by the then Raja in favour of those farmers. Before the cowles the Raja or Zamindar received 48 per cent of the total produce, the ryots or actual cultivators of the land keeping the other 52 per cent. Of that 48 per cent one-fourth or 12 per cent of total was received by the Raja for certain purposes---3 per cent for charities and 9 per cent for the payment of village officers whom the Raja was liable to pay. By the cowles, the Raja let for a term of years all his interest in the villages to the farmers. The villages are defined by boundaries and most of the land in them was in the occupation of ryots, but there were offices, buildings, tanks, trees and possibly waste land and jungle, which were in the occupation of the Raja himself. Therefore, what was let was his interest in the lands in the occupation of the ryots in respect of which he received the 48 per cent melvaram and such buildings, lands, trees, etc., as were in his own occupation. There was an obligation on the part of the farmers to do certain repairs. After the cowles the farmers, in fact, received the whole 48 per cent melvaram and paid the village officers in kind. They agreed by the cowles to pay to the Zamindar in addition, to the rent reserved the 3 per cent for the charities and an amount which they collected for road cess for which the Zamindar remained liable as between him and the Government though between him and the fanners they took over this obligation.

2. John Wallis, C.J., with whose judgment I entirely agree, holds that the effect of the cowles was that the farmers took over with, the village and the waram the obligation to pay thereout what were, in fact, charges on that waram, that is, payments to be made to the village officers out of the waram. Sadasiva Ayyar, J., field that the obligation was taken over by the farmers by custom. This is probably also correct, but, if there is, as I hold, an implied term as found by Wallis, C.J., it is unnecessary to rely upon the custom. At a later date, by the Madras Act II of 1894, the payment of these officers in kind was abolished, and it would follow, if the matter rested there, that the farmers would be freed from liability to make these payments but could keep that part of the melwaram which was leased to them in order that they could make these payments, that is the 9 per cent. It is argued that they were receiving and paying away the 9 per cent to the village officers as agents of, or trustees for, the Raja. I am unable to accept this view or to say that there was an implication of the term in the cowle that the farmers should collect 9 per cent on behalf of the Raja and that, if at any time the whole or any part were not required for the payment of the village officers, they should account to him for any unused amounts. Now, it is a well established rule that a term will only be implied when the Court is driven to the conclusion that the parties must necessarily have intended that stipulation. This is generally known as the rule in The Moorcock (1889) 14 P.D. 64 which was followed and clearly enunciated in Hamlyn & Co. v. Wood & Co. (1891) 2 Q.B. 488I can find no such necessity, for the cowle is equally consistent with the farmers taking over the whole waram and taking the risk of what they might have to pay to these village servants. It would be a perfectly intelligible contract and this, in my view, is the proper interpretation of this contract. Acting under the statute in question, the Government which had taken over that liability to pay the village servants and relieved the Raja from that liability increased the peshkash payable by the Raja with the result that, but for a further provision in the statute in a case like this, the Raja would have to pay the extra peshkash, whereas the farmers would receive and keep what was still being received from, the ryots to provide for the payment of the village officers, that is, the 9 per cent. This would be most inequitable and hence Section 27(4) of the Act provides as follows: 'If, in any case, the rent payable to a proprietor in respect of any land has been fixed under an agreement subsisting on the date of this Act coming into force, to the effect that any portion of the remuneration of the village officers shall be borne by the tenant or the proprietor, as the case may be, it shall be lawful for the proprietor or tenant to apply to the Collector for sanction to increase the said rent or to demand its reduction; and the Collector shall, upon receipt of such application and upon satisfactory proof of the justice of the claim, grant such sanction and increase or reduce the rent to the amount at which it would have been fixed had no such agreement been entered into.' This applies to this case unless it can be successfully contended that the farmers in question are not tenants within the meaning of that section, as was held by Sadasiva Ayyar, J., and was also held in Rajam Ayyar v. Raja Rajeswara Muthuramalingam Sethupathi S.A. No. 510. of 1918 (unreported). by Oldfield and Krishnan, JJ. I cannot attach importance to the latter case---we do not know what was argued or whether this question was necessary for the decision in that case. I do not agree with Sadasiva Ayyar, J., on this point or with that other judgment, if it so held. In my view, these farmers were tenants in the proper ordinary sense of the word for the reasons I have pointed out above. Further, I am quite clear that they are tenants within the meaning of this section for on any other construction of this section, persons in the position of these farmers who were many and known to be many at the time when the Act was passed, would have been left in possession of the produce of the land to which morally they had no sort of right, and I do not think I am driven to such an absurd construction. I do not attach any importance to the fact that it has been held under another or other statutes, such as the Madras Rent Recovery Act, that 'farmers'---I use the word in the sense of persona farming the rents---are not 'tenants' within the meaning of certain sections of those Acts. It follows that, in my judgment, the Raja is entitled to apply under that section to the proper authority to have the rent payable by the farmers adjusted in accordance with the terms of that section, namely, by increasing the rent to the amount at which it would have been fixed had no agreement been entered into providing that the farmers should pay the village officers. As far as I can see, the result will be that the Raja will obtain all that he is asking for in this action. But in my view, this action was entirely misconceived and accordingly the appeal must be allowed with costs and the decree of the Subordinate Judge will be modified by disallowing the value of the manibham and swatantram with interest. The parties will pay and receive proportionate costs both in the Subordinate Judge's Court and before the Division Bench.

4. I entirely agree, and I only desire to add two observations of my own. The first is this: It seems to me that, where a Court feels itself driven, as we do in this case, to make an implication in a contract which, is not there in terms, it should endeavour strictly to limit that implication to what is absolutely necessary to carry out what is believed to be the intention of the parties. In this case that appears to be effected by holding that what was intended was that the defendant undertook, as a personal covenant, the duty of discharging the claims of the village officers and of indemnifying the Zamindar against those claims. That seems to me to carry out sufficiently what we hold the parties to have meant, and I decline to go further and imply such conceptions as that of trusteeship or agency into such a matter.

5. The other observation that I desire to make is with regard to Section 27 (4) of the Madras Act II of 1894. I think it is most important in this country to construe the terms of an Act taken from the English Law strictly in relation to the immediate context and to decline to be guided by evidence as to their meaning or judicial interpretations of them when they occur in another context or in other statutes. I look at Section 27 (4) of this Act and I find these words:---If the rent payable to a proprietor in respect of any land has been fixed under an agreement to the effect that any portion of the remuneration of the village officers shall be borne by the tenant or the proprietor, as the case may be, then certain consequences shall follow. I think that, for the purposes of that section, it is abundantly clear that the word 'tenant' must be so construed as to mean a person in the nature of those defendants whose case we are considering here. It seems to me that once you have got it that the Zamindar here, who is clearly the proprietor within the meaning of this statute, sues for payment T of rent---and, in fact, the first branch of Mr. Ranga Achariyar's argument was to insist upon it that what was covenanted for here was rent and nothing else---and if you look at this clause and nothing else, it is inevitable t to conclude that the person described as a 'tenant' is the person who pays rent to the proprietor and that the one is the mere correlative of the other. Therefore, I think that there is nothing to prevent our holding that the defendant here is a tenant within the meaning of that statute, and I find nothing in Nallayappa Pillian v. Ambalanana Pandara Sannadhi I.L.R. (1904) Mad. 465 to alter that opinion, would also point out that that case itself very wisely, if I may respectfully say so, proceeded on very much the same lines as I have indicated, namely, of construing the words in strict relation to the exact context and the portion of the statute in which they occur. I only desire to add this that I am not prepared to hold that the learned Judges, who decided Subbaraya v. Srinivasa I.L.R. (1884) Mad. 580 and Baskarasami v. Sivasami (1885) I.L.R. 8 Mad. 196., were wrong.

Kumaraswami Sastri, J.

6. If the cowles can be construed to be assignments by the Zamindar of the 48 shares in the produce which were allotted to the Raja's share at the division of the produce subject to the obligation of the transferee to meet the obligations to discharge which 12 out of the 48 shares were liable and an indemnity in favour of the Zamindar, I agree with my Lord and my brother Coutts Trotter, J., that the remedy of the Zamindar is to proceed under Section 27 of the Proprietary Estates Village Service Act (Act II of 1894). Having regard to the terms of the cowles which are not mere transfers of the melvaram without any transfer of interest in the lands but which transfer in addition the waste forest and other lands in which the Zamindar had a proprietary interest and which also require certain services to be rendered, the cowledar will be a tenant in the ordinary acceptation of the terms. This distinguishes the case from the decision of Old field and Krishnan, JJ., in S.A. No. 510 of 1918, Raj am, Ayyar v. Raja Rajeswara Muthuramalinga Sethupathi S.A. No. 510 of 1918 (unreported).

7. He will be a person liable to pay rent to the Zamindar which has been fixed with reference to an implied agreement to the effect that he shall pay the remuneration to the village officers and Clause 4 of Section 27 will in terms apply to him.

8. I find it, however, difficult to hold that there was any transfer to the cowledar of the 12 shares out of the 48.

9. The immemorial practice in the zamindari was for the produce being brought to the threshing floor for division between the tenants and the Zamindar. The tenants took 52 shares and left 48 shares for the Zamindar who had to remunerate the village servants and to contribute towards certain charities (Mahamais). So Car as the remuneration of the village munsif, karnam and watchman were concerned it was a statutory duty. What, the Zamindar did was to set apart 1 share of the 48 left after the tenants took their share to the Dharma Mahamai, 2 shares to the Jari Mahamai and 9 shares for the remuneration of the village officers. The village officers had the right to receive their shares at the threshing floor at the time of the division. They had the right of suit against the Zamindar if they were not paid and could recover their share of the produce both personally and against the estate of the Zamindar. As regards the charities the Zamindar was bound to account and could be proceeded against for breach of trust if he did not set, apart and hand over the share due to the charities. It is clear that at the date of the cowles the Zamindar had no interest in the 12 shares which had, by long custom, been set apart for the discharge of obligations which were perfectly well known to everybody and could be enforced against the Zamindar. These obligations could not be got rid of by the Zamindar by assignment of the melvaram to somebody else, and he remains liable in spite of the assignment. An assignment of the 12 shares would not benefit the cowledar while it would not place the Zamindar in any better position than he would have been if there was no assignment. At the date of the cowle the position was this. As soon as the tenants took away their 52 shares, 36 shares were set apart for the Zamindar, 3 shares for the charities and 9 shares for the village officers, each party taking what was due. The terms of the cowle show, in my opinion, that what the Zamindar did was to transfer to the cowledar the 36 shares due to him and as to which he had absolute power of disposal and to ask the cowledar to collect and pay over to him the 3 shares which were due for the charities and make the various payments to be made to the village officers out of the shares. The terms of the cowles in the two appeals are similar and I shall take one of them by way of illustration.

10. The cowle, Exhibit A in Appeal No. 159, begins by stating that the sarasari for each fasli on a ten years' average was Rs. 982-10-1 and it fixes the rent at Rs. 425-3-1 on this basis. It is found by the Subordinate Judge and not disputed before us that Rs. 982-10-1 represents the amount calculated on the 36 shares which belonged to the Zamindar and excluded the 12 shares which were being set apart for the charities and payment to the village officials so that it is clear that the whole basis of the transaction was on the footing that what was being transferred was the net share of the Zamindar and not the whole of the 48 shares that remain after the tenants took their shares. The deed proceeds to stipulate that the cowledar should ' along with the said poruppu (rent) amount pay the road cess, Jari Mahamai, Dharma Mahamai, etc., amount fixed upon the respective accounts.' It is not disputed that these payments were to be made and were, in fact, being made during all these years to the Zamindar and not to the Government or the charities direct. No adequate reason is given as to why the Zamindar should require the road cess and charity amounts to be paid over to him if the 48 shares were assigned with the obligation to meet the liabilities direct. It is suggested that he wanted the charity amounts to be paid over to him direct in order that he might misappropriate a portion of what would otherwise go to the charities. It is extremely unlikely that a man who was assigning a village yielding more than double of what he required the transferee to pay him as rent would stipulate for the delivery to him of 3 per cent of the income in order that he might have the opportunity of misappropriating a small portion of that amount. The absurdity of it is patient. The reason why the Zamindar wanted these sums to be paid back to him is because he assigned over only the net amount after deducting the 12 shares and the 12 shares will have to be distributed between the charities and servants, neither the Zamindar nor the transferee having any beneficial interest in it. The village servants having the right to take their share out of the 9 shares of the produce set apart for them there was my necessity for the share being paid to the Zamindar and again paid over by him to the servants, convenience obviously suggesting that the cowledar should deliver it direct to the servants. As regards the Dharma Mahamai and Jari Mahamai which represented the 3 shares, as the practice was for the Zamindar to take 3 shares for payment over to the charities he required the cowledar to collect and pay over the 3 shares to him.

11. It is significant that the cowles nowhere state that the cowledar should discharge the obligations to third parties which the Raja was under an obligation to discharge. It simply states that the cowledar should pay over to the Raja the road cess and 3 shares allotted to the charities. It says nothing about the 9 shares payable to the village officers, a fact which is unlikely if there was a transfer of the 9 shares to the cowledar under an agreement of indemnity should the cowledar not pay the village servants. I agree with the following observations of Sadasiva Ayyar, J., whose knowledge of the land laws and tenures of this Presidency is unique, ' both the lessee and the Raja knew and contemplated that the lessee will pay it according to custom to the village officers direct instead of through the Raja. The Raja's direct receipt of it himself at the granary and paying it over at once to his village officers would have resulted in a mere circumlocution and unnecessary trouble.' I also agree with him in thinking that the 12 per cent was received by the cowledar as agent of the Raja and not by virtue of his right as assignee of the shares with an obligation to discharge the liability of the Raja to pay 3 per cent to charities and 9 per cent to the village officials.

12. I would confirm the decrees of the Subordinate Judge and dismiss the Letters Patent Appeals with costs.